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Roy Warden, Publisher Common Sense II 1015 West Prince Road #131-182 Tucson Arizona 85705 roywarden@hotmail.com

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA
ROY WARDEN, Petitioner, v. MAYOR BOB WALKUP, for the City of Tucson, Respondent, and THE CITY OF TUCSON, Real Party at Interest
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Superior Court No. C20117276

PETITIONERS ANSWER TO MOTION TO DISMISS

Oral Argument Requested

The Honorable Steven Villarreal

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COMES NOW THE PETITIONER, Roy Warden, with his Answer to Respondents Motion to Dismiss as set forth below: ISSUES PRESENTED To support his contention that this Court should deny jurisdiction in the above captioned Petition, Respondent states the following legal conclusions:

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The Mayor has legal authority to impose orderly conduct rules; the Petitioner has an alternative forum to obtain a judicial determination of the merits of his claim;

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the Petitioner continues to speak unhindered at the call to the audience; and

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the Mayor and Council are considering revisions to the orderly conduct rules which would render Petitioners request for relief moot. LEGAL ARGUMENT

The Mayors Authority On page six of their Motion to Dismiss Respondent cites Caruso v Superior Court, 100 Ariz., 167, 170 as set forth below: (T)he Arizona Supreme Court clarified that the meaning of acting without legal authority means whether the court had the power to hear and determine the case, rightly or wrongly. Acts in excess of jurisdiction include acts exceeding the power of the court as defined by constitution, statute or court rules followed under the doctrine of stare decisis. By citing Caruso, Respondent mistakenly contends the Arizona Constitution grants the Mayor the same authority to impose rules of public decorum that it grants Arizona courts to hear and determine a case in law. Petitioner agrees the Mayor has the authority to impose rules of proper decorum for public address during Call to the Audience. However; both the constitutions of the United States and the State of Arizona, as clearly defined in law1, expressly deny the Mayor the authority to abridge public speech before the Mayor and Council on the basis of content or viewpoint.

The Tucson City Council is a limited public forum, in which public commentary and conduct is subject to reasonable time, place and manner regulation; however, commentary on matters of public concern may not be limited on the basis of content or viewpoint. Sabelko v City of Phoenix, 846 F.Supp. 822
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To support this principle of decorum, Respondent cites Norse v City of Santa Cruz, 629 F.3d, 966, 975 ( 9th Cir. 2010), which in part, states that speech must disrupt, disturb, or otherwise impede the orderly conduct of the Council meeting before a public speaker can be removed. However; a review of the transcripts and video recordings provided by Respondent, shows Respondent altogether misstates Petitioners conduct on September 13, 2011 when Petitioner was arrested2 in his speech and forcibly removed from the meeting by armed members of the Tucson Police Department. On September 13, 2011, irrespective of how Respondent chooses to categorize his speech, the transcription reveals Petitioner did not make repetitious and slanderous personal attacks on City Manager Richard Miranda. After introductory commentary, Petitioner merely said, Youre angry because Ive called Miranda here If the orderly conduct of the meeting was, in fact, disturbed on September 13, 2011, it was disturbed by Mayor Walkup himself, who rudely interrupted Petitioner and, with a nod of his head, signaled armed TPD officers to surround Petitioner and forcibly remove him from the meeting. Petitioner respectfully submits: public officials may not bootstrap themselves, create the illusion of disruption, and then use that disruption as justification for silencing public commentary. Moreover; regarding words such as slanderous and defamatory: however much these words may be in common use, in the present context
(Ariz. 1994), citing Forsyth County v. Nationalist Movement, 112 S.Ct. 2395 (1992) 2 As defined by Merriam-Webster, middle English aresten, from Anglo-French arester to stop.

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they are conclusions which must be made in a court of law by finders of fact, not mere qualifying adjectives or words of art to be used by members of the executive or legislative branches of government who wish to silence public criticism of their conduct. And finally; the purpose of this Petition is to stop the Mayor from acting arbitrarily or capriciouslyor threatening to proceed without or in excess of jurisdiction or legal authority, not to determine exactly what he did on September 13, 2011, and why he did it3. Petitioners Alternative Legal Forum The Rules of Procedure for Special Actions provide: (T)he special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal. Notwithstanding the fact that the above rule is concerned with addressing contended matters originating from court proceedingsand not issues created by administrative actions taken by the executive branch of local governmentRespondent contends Petitioner has an equally plain, speedy and adequate remedy by filing a Title 42 Section 1983 action in federal court Petitioner submits: The Title 42, Section 1983 action for damages Dr. Gilmartin filed against Richard Miranda for First Amendment violations languished for eight years before final judgment was entered and relief granted. Moreover; the extensive pre-trial procedures permitted for any Title 42 Section 1983 actioneven an action for declaratory relief alonewould deny Petitioner a speedy and adequate remedy in law.

Plaintiff will seek fact finding of this nature, and remedy for damages, in a federal venue.
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Respondent respectfully submits: special action affords him the only reasonable remedy he has for speedy judicial resolution. Petitioner Continues to Address Council Respondent asserts: since Petitioner has continued to address the Mayor and Council, the threat the Mayor issued on September 20, 2011 to further enforce the rules does not chill public debate. Petitioner now affirms: he is chilled in his spirit and frightened each time he addresses the Mayor and Council; chilled and frightened but not sufficiently to deter him from the exercise of his constitutionally protected right to address local officials on matters of public concern. Proposed Revisions to Rules On the basis of page four of the extensive proposed revisions to the rule now under review4, Respondent (apparently) concedes the present rule is constitutionally infirm. See Petitioners Exhibit A. (Please note: the exhibits that Petitioner received in Respondents Motion to Dismiss were duplicated and disorganized to the extent that Petitioner was not able to determine which documents were part of which exhibit.) Respondent claims the Mayor and Councils mere consideration of rule5 changes renders this issue moot. Plaintiff respectfully submits: their consideration of rule changes is inspired by embarrassment and the pendency of this action, not by any consideration of protecting the publics First Amendment rights. Furthermore; Respondents proposed rule changes will further limit public participation in Call to the Audience for the following two reasons:
Respondents have deleted significant portions of the present rule, including the prohibition of making personal, impertinent, or slanderous remarks, etc. 5 The rule in question has remained intact, in place, and unchallenged since 1982.
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Call to the Audience is removed from the beginning and placed at the end of the Mayor and Council meeting, an indeterminate time when the public is weary and less likely to attend.

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The proposed rule still grants the Mayor the authority to arrest and remove any public speaker who utters words the Mayor considers to be defamatory, or threatening,6 thus giving the Mayor, as he has already so determined, the authority to stop any criticism of local officials. CONCLUSION In a larger context, Petitioner respectfully submits: the U.S. Supreme

Court set forth the doctrine of judicial review in Marbury v Madison in 1803. Since then, members of the legislative and executive branches of government have continued to chaff at the very idea they may not write their own rules and then, arbitrarily and capriciously, decide how to impose them. In the Bill of Rights, the Founding Fathers, forever mindful of the tyranny of popular government7, set forth as inviolate the rights of We the People to address our public officials on matters of public concern8, and

Regarding threatening commentary: Councilpersons Romero, Kozachic and Uhlich found Petitioners comments to be threatening when he merely repeated facts found by the Gilmartin jury in 2006 against Tucson City Manager Richard Miranda. Please review the transcripts provided by Respondent and see attached Exhibit B. 7 In The Patriot Mel Gibson asked: Why should I substitute the tyranny of one man three thousand miles away for the tyranny of three thousand of my neighbors one mile away? 8 Next year the U.S. Supreme court will revisit the issue of First Amendment Retaliation and the publics right to confront and address public officials. Reichle v. Howards (11-262)
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gave us courts to protect these liberties. This Petition merely continues an argument already several centuries old. Petitioner intends to research, brief and submit a supplemental brief regarding constitutional law and the precise wording of the present rule now under review. PRAYER Petitioner respectfully requests this Court to DENY Respondents Motion to Dismiss, and to GRANT Petitioner an additional and reasonable amount of time to write a supplemental brief regarding the constitutionality of the words used in the rule now under review; words which, on the basis of their omission from the proposed new rule, Petitioner submits and Respondent seems to concede, are constitutionally infirm. RESPECTFULLY SUBMITTED this 19th day of December 2011. BY ____________________ Roy Warden, Petitioner

State of Arizona County of _____________ On this ____day of ____________________, 2011, before me the undersigned Notary Public, personally appeared Roy Warden, known to me to be the individual who executed the foregoing instrument and acknowledged the same to be his free act and deed. My Commission Expires:_______________ ___________________ Notary

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EXHIBIT A

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EXHIBIT B

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